Sunil Ambwani, J.
1. Heard Shri H.P. Dube, learned Counsel for the petitioner and Shri Ashutosh Mishra, caveator for the respondent No. 2. With the consent of the parties, the matter was heard and is being finally decided.
2. The Purvanchal Vidyut Vitran Nigam Ltd., Bhikaripur, Varanasi' through its Managing Director petitioner No. 1 and 'he Executive Engineer, Electricity Distribution Division, Fatehpur-petitioner No. 2 have filed this writ petition to set aside an award of the 'Electricity Ombudsman' made under Section 42(7) of (The) Electricity Act, 2003.
3. Shri Gopal Krishan Gupta, Managing Director of M/s. Shyam Ferrous Ltd., Fatehpur (the unit) applied for sanction of 3000 K.V.A. connection. In his application he stated that he was one of the best consumers of electricity for last ten years of 3000 K.V.A. electricity which was connected with 33 K.V. Fatehpur Feeder. On account of unstable market and resultant financial difficulties, he had requested on 20.6.2006 for four months temporary disconnection. The permission was not given, on which, he paid all the dues and got the electricity permanently disconnected on 31.7.2006. As soon as his financial condition improved he made an application on June, 2007 after depositing Rs. 3,000 and completing all the formalities for 3000 K.V.A. electricity connection. The consumer cited the example of five induction furnaces and rolling mills at Fatehpur feeder from U.P.S.I.D.C. feeder, and the difficulty of establishing independent feeder across railway lines and about 4 km. of agricultural land. He pleaded that the unit will have to spent Rs. 50 lacs for the cost of independent feeder, which the unit will be unable to bear.
4. The unit was not allowed the connection on the ground that under Clause 3.4 (a) of the U.P. Electricity Supply Code, 2005, the connection for 3000 K.V.A. could only be given by an independent feeder and that it was not possible to establish an independent feeder as there was a railway track and about 5 kms. agricultural land in between the substation and the industry. The consumer approached the Consumer Disputes Redressal Forum, Fatehpur with his complaint. The forum, consisting of three members including a Chairman, instead of deciding the matter, allowed the Executive Engineer/Presiding Officer of the forum to consider and decide the application. The application was disposed of on 17.11.2007 under the signatures of the Presiding Officer of the Forum.
5. Shri P. Ram, the Presiding Officer of the Forum observed in his order dated 17.11.2007 that the petitioner's application for connection can be allowed only by giving the approval of the load under Clause 3.4 (a) of the U.P. Electricity Supply Code, 2005 by an independent feeder. The application has been forwarded to the higher authority. In respect of the sanction of the load of 3000 K.V.A. to M/s. Laxmi Katsin Ltd., Malwa dated 17.11.2007, the sanction of the load was forwarded by him to the Managing Director, Purvanchal, Varanasi. The representation was disposed of with direction that the electricity connection can be sanctioned only by an independent feeder.
6. The consumer filed an appeal with the 'Electricity Ombudsman' on the grounds that he is suffering recurring losses and that the cost of establishment of an independent feeder and system loading charges (to be paid to U.P.S.I.D.C.) will come to about 1 crore. The 'Electricity Ombudsman' after hearing both the parties on 11.12.2007 and 26.12.2007 and after considering the records found that the recommendations for the independent feeder under para 3.4 (1) of the U. P. Electricity Supply Code, 2005 has been made in favour of the consumer. There is no technical objection to supply electricity through 33 K.V. Fatehpur Feeder and 132 K.V. Sub-Station. The dispute was confined to provide electricity from either the independent feeder or 33 K.V., Fatehpur Feeder by tapping. According to para 3.4 (d) where there is difficulty of the way or it is not possible to establish independent feeder, the tapping may be permitted. The 'Electricity Ombudsman' found that it will take some time for the consumer to obtain no objection certificate from the railways to cross the electricity lines and that there may be difficulties in constructions of feeder. The matter was pending for eight months and that the consumer is suffering losses of Rs. 50 lacs per month. The 'Electricity Ombudsman' observed that the consumer has been a model consumer upto 31.7.2006. There were no complaints against him for any faults or irregularities. In similar circumstances M/s. Nitin Ispat was allowed tapping from the same feeder on 5.3.2005 and M/s. Laxmi Katsin Ltd. was also allowed tapping under the orders of the High Court. the circumstances, the 'Electricity Ombudsman' observed and directed that 'at present' it will be appropriate to release connection by tapping from 33 K.V.A. Fatehpur Feeder, and that an independent meter be installed to carry out energy audit and to avoid thefts.
7. Shri H. P. Dube learned Counsel for the petitioner submits that the Electricity Ombudsman does not have the authority to overstep the statutory provisions of Clause 3.4 (a) of the Electricity Supply Code. 2005. He has not considered the difficulties faced by the petitioner, in allowing independent feeder, which could only be permitted if the consumer complies with the provisions of the Electricity Supply Code. Shri Dube has referred to a Judgment of this Court in Civil Misc. Writ Petition No. 31019 of 2007, Pawan Kumar Agarwal v. State of U.P. and Ors., decided on 12.10.2007 : 2008 (1) AWC 158, in which the Court found that under Clause 3.4 of the Code it is mandatory to supply electricity to the Arc/ Induction furnaces. Rolling Mills, Re-rolling Mills and Mini steel plants, where the load applied is 1,000 K.V.A. and above through independent feeder. Sub-clause (a) deals with specific industries of 1,000 K.V.A. and above load. However, if the consumer falls under Sub-clause (b), and applies for the load above 500 K.V.A., an option has been given to the consumer to get the supply through independent feeder. If the consumer under Sub-clause (b) does not want supply of electricity through an independent feeder, the respondents cannot compel or insist upon supplying the electricity, to the unit. Of course the requirement is that it is technically feasible to supply the same from any other feeder, which in the facts of the case was found by the respondents themselves. The Court did not agree that the industries mentioned in Clause (a) are only illustrative.
8. Shri H. P. Dube further submits that though the petitioner did not take any such stand before the 'Electricity Ombudsman', that it was not technically feasible to tap 33 K.V.A., Fatehpur feeder, the 'Electricity Ombudsman' could not have given direction contrary to Clause 3.4 (a) of the Electricity Distribution Code, 2005, which mandates that in the cases falling under Clause 3.4 (a), the load shall be released only through an independent feeder.
9. Learned Counsel appearing for the respondent-industry submits that the scope of interference with the award of 'Electricity Ombudsman' is very limited. The 'Electricity Ombudsman' promotes a settlement of the representation/complaint through conciliation or mediation and is not bound by rules of evidence or procedure. In the cases, where the settlement through mediation could not be arrived, he may give an award in accordance with the Electricity Act, 2003. A combined reading of Clause 9 (a) of the Regulations of 2004 and Clause 12.1 of the Regulations of 2007 provides for an award, which is similar to the award given by an Arbitrator and which may be challenged on limited grounds, given under Section 34 of the Arbitration and Conciliation Act, 1996. In the case of settlement by conciliation and mediation, it is not open to the parties to challenge the settlement as a settlement is compromise entered into between the parties voluntarily and, which cannot be challenged by the parties except for want of jurisdiction of the authority making the settlement or fraud. In the case of an award, as in the present case the High Court may interfere, when the parties were under some incapacity, the parties making an application were not given proper notice; the award deals with disputes, which are not contemplated or, the matters are excepted to be decided by the forum or Ombudsman and where the subject-matter is not capable of settlement by arbitration under the law, or the award is in conflict with public policy. He submits that in the present case no such grounds, which are available for setting aside of the award (on the ground of 'misconduct') are available. The petitioners in their reply to the Electricity Ombudsman did not take up any ground that it was not technically feasible or that sufficient load is not available for tapping. The petitioner did not have any objection if independent feeder is provided, but that was not feasible until no objection certificate was given by railways and the lines were laid out. There was a railway track and agricultural land on which the independent feeder has to pass for supply of electricity.
10. The 'Electricity Ombudsman' has considered the objections of the petitioner. He has also found that the application of the petitioner of the consumer for independent feeder and the increase of load factor of 122 K.V.A. Sub-Centre is in process. He found that under Clause 4.2, 4.4 and 4.6 of the Electricity Distribution Code, 2005 several steps have been taken for simplifying the procedure for electricity connection. The Electricity Supply Code, 2005 is applicable from 18.2.2005, and that M/s. Nitin Ispat and M/s. Laxmi Katsin Ltd. were also allowed tapping from this very feeder on 5.3.2005, and on the orders of the High Court respectively. Taking into account all the factors and that the consumer was model consumer the Electricity Ombudsman has found that release of connection for the time being from 33 K.V.A. Feeder is proper with certain safeguards regarding energy audit and for theft of energy.
11. Clause 3.4 (d) of the U. P. Electricity Distribution Code, 2005 provides for exceptions to Clause 3.4 (a) and these exceptions include the conditions, where construction of separate feeder is not possible on account of non-availability of corridor, right of way and bay at tike respective sub-station. The words 'the tapping of the independent feeder shall be permitted by licensee to other connection having a similar process' would include the consumers of Arc, Induction furnaces/Rolling Mills, Re-rolling Mills and Mini Steel plants of 1000 K.V.A. and above and includes the connection to be given to the petitioner.
12. The 'Ombudsman' is defined in Webster's New Collegiate Dictionary : (1) a Government official (as in Sweden or New Zealand appointed to receive and investigate complaints made by individuals against abuses or capricious acts of public officials ; (2) one that investigates reported complaints (as from students or consumers), reports findings, and helps to achieve equitable settlements. The Blacks Law Dictionary defines 'Ombudsman' as : '(A)n official appointed to receive, investigate, and report on private citizen's complaints about the Government. A similar appointee is a non-governmental organization (such as a company or university.
13. In Durga Hotel Complex v. R.B.I. (2007) 5 SCC 120 : 2007 (3) AWC 2281 (SC), while discussing the powers of Ombudsman appointed by the Reserve Bank of India under the Banking Ombudsman Scheme, 1995 the Supreme Court observed in para 15 that conceptually an Ombudsman is only a non-adversial adjudicator of disputes. He serves as an alternate to the adversary system for resolving disputes, specially between citizens and Government agencies. He as an independent and non-partisan officer, deals with specific complaints from the public against the administrative injustice and mal-administration (See 4 American Jurisprudence 2d). By its very nature an Ombudsman is an alternative to an adversary system for resolution of disputes and it is logical to postulate from Clause 16 of the scheme that the Ombudsman, who had entertained the complaint before the matter was taken to D.R.T., will lose his Jurisdiction over the subject-matter of the complaint. The Banking Ombudsman has no authority to compel the bank to make further advances, which as a prudent banker, it might not find feasible, nor can the Banking Ombudsman interfere with the agreement regarding the repayment schedule fixed by the bank or the financing ratio that may be maintained between the bank and the borrower. Nor can he direct the increase of the period of moratorium or fix a schedule of repayment of loan. These observations were made on the interpretation of powers of the Banking Ombudsman under Clause 13 of the Banking Ombudsman Scheme, 1995, which provides for specific ambit of authority of Banking Ombudsman with regard to, (b) complaints consisting loans and advances only in so far as they relate to : (i) non-observance of Reserve Bank directions on interest rates (ii) delays in sanction/non-observance of period, time schedule for disposal of loan application, and (lit) non-observance of any other directions or instructions of Reserve Bank, as may be specified for the purpose, from time to time. The Supreme Court upheld the order of the High Court by which it had found that Banking Ombudsman had exceeded his Jurisdiction in passing the award. The directions to advance the balance amount and to make available additional finance on the basis of recommendations of the committee, directions to maintain financing ratio of 75 : 25 and fixing repayment schedule of 7 years exclusive of one year moratorium, were found by the High Court to be beyond the Jurisdiction in making the award. The Supreme Court affirmed the order of the High Court and justified its interference with the award of Banking Ombudsman.
14. The Electricity Act, 2003 refers to the duties of distribution licensees and open access in part VI 'Distribution of Electricity'. In Section 42, which provides for duties of the distribution licensees to develop and maintain an efficient coordinated and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in the Act. Sub-section (2) provides for the State Commission, which means the State Electricity Regulatory Commission constituted under Sub-section (1) of Section 82 and includes a joint commission constituted under subsection (1) of Section 83 (Section 2(64) of the Act). Sub-section (5) of Section 42 of the Act provides for establishment of a forum for redressal of grievances of the consumers, in accordance with the guidelines as may be specified by the State Commission. Sub-sections (6), (7) and (8) relevant for this case provides:
(6) Any consumer, who is aggrieved by non-redressal of his grievances under Sub-section (5), may make a representation for the redressal of his grievance to an authority to be known as Ombudsman to be appointed or designated by the State Commission.
(7) The Ombudsman shall settle the grievance of the consumer within such time and in such manner as may be specified by the State Commission.
(8) The provisions of subsections (5), (6) and (7) shall be without prejudice to right which the consumer may have apart from the rights conferred upon him by those sub-sections.
15. In Uttar Pradesh the Electricity Ombudsman is appointed by the U.P. Electricity Regulatory Commission under Regulation 3.3.1 of the U.P. Electricity Ombudsman (Terms and Conditions of Service) Regulations, 2004 notified in U. P. Extraordinary Gazette dated 20.4.2004. Clause 6 provides:
The Electricity Ombudsman shall be an Engineering Graduate preferably with knowledge of law with a minimum of 20 years experience in a public/private Electricity utility of which ten year should be in distribution. Exposure to regulator affairs will be preferred. In exceptional cases the Commissioner/Selection Committee reserved the right to relax the experience criteria.
16. The Regulations, 2004 provide for the powers and duties of the Electricity Ombudsman as follows:
9. The Electricity Ombudsman shall have the following powers and duties:
(a) To receive the appeal petitions against the order of the Consumer Grievance Redressal Forum and consider such complaints and facilitate their satisfaction settlement by agreement, through conciliation and mediation between a licensee and aggrieved parties or by passing an award in accordance with the Electricity Act provisions of U.P. Electricity Reforms Act, 1999 not inconsistent with Electricity Act, 2003 and Rules or Regulations made thereunder particularly U.P.E.R.C. (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2003 Electricity Supply Code.
(b) The Electricity Ombudsman shall exercise general powers superintendence over his office and the office of Consumer Grievance Redressal Forum (Constituted by the Licensees under U.P.E.R.C. (Consumer Grievance Redressal Forum Electricity Ombudsman) Regulations, 2003 and shall be responsible for the conduct of business thereat.
(c) The Electricity Ombudsman shall specify the procedure to be adopted issue of notices, calling attendance, examination on oath, receipt of evidence requisitioning of records,
(d) The Electricity Ombudsman shall specify the form and manner in which representation is to be submitted before him.
(e) The Electricity Ombudsman shall have the powers to incur expenditure on behalf of the office. In order to exercise such powers. The Electricity Ombudsman will draw up an annual budget for his office in consultation with the Commissioner and shall exercise the powers of expenditure within the approved budget. The annual accounts of the office of the Ombudsman shall be maintained in such manner and formats as specified by the Commission.
(f) Any other matter referred by the Commission.
10.10.1. The Electricity Ombudsman shall have the power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or produce any document, which may be useful for or relevant to the subject-matter of the complaint before the Ombudsman.
10.2. For the purpose of carrying out his duties, an Electricity Ombudsman may require the licensee named in the complaint to furnish certified copies of any document relating to the subject-matter of the complaint, which is or is alleged to be in its possession, within 15 days:
Provided that in the event of failure of a licensee to comply the requisition without any sufficient cause, made under this clause. The Electricity Ombudsman may, if he deems fit, draw the inference that the information, if provided or copies if furnished, would be unfavourable to the licensee and proceed to settle the case on that basis.10.3. the Electricity Ombudsman shall maintain confidentiality of any information or document coming into his knowledge or possession in the course of discharging his duties and shall not disclose such information or document to any person except with the consent of the person furnishing such information or document:Provided that nothing in this clause shall prevent The Electricity Ombudsmen from disclosing information or document furnished by a party in a complaint to other party or parties, to the extent considered by him to be reasonably required to comply with the principles of natural Justice and fair play in the proceedings.
17. The U.P. Electricity Regulatory Commission has in exercise of its powers conferred on it under Section 181 read with subsections (5) to (8) of Section 42 of the Electricity Act, 2003 made U.P.E.R.C. (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulation, 2007, notified in Extraordinary Gazette of U.P. on 4.10.2007. These regulations provide in Regulation 3.1 for constitution of Consumer Grievance Redressal Forum with a judicial member as Chairperson, a technical member and an officer of the licensee at (1) Agra Discom including Kanpur, Agra, Jhansi and Chitrakoot ; (2) Meerut Discom for Meerut, Moradabad and Saharanpur ; (3) Lucknow Discom for Lucknow, Bareilly, Faizabad and Devipatan (Gonda) ; (4) Varanasi Discom for Varanasi, Allahabad, Gorakhpur, Azamgarh, Mirzapur and Basti ; (5) K.E.S.C.O. for Kanpur and N.P.C.L. for Greater N.O.I.D.A. The forums are authorised under Regulation 3.4 to entertain complaints of the consumers/complainants, who are supplied electricity by the concerned Distribution Licensee within the area of respective Commissioner's Division and in case of K.E.S.C.O. and N.P.C.L. such area shall mean the area of licensee to dispose of the matters under Regulation 3.5 (2) to consider (a) all complaints to be filed before the forum ; (b) the existing forums shall cease to receive complaints were continued to function for one month from the date of establishment of the forums under the Regulations.
18. Regulation 5.0 provides for jurisdiction of these forums with exceptions under Regulation 5.1 regarding the matters mentioned in Sections 126, 127, 128, 135, 139, 143, 152 and 161 of the Electricity Act, 2003. The forums can take up complaints on an application or suo motu, if it considers appropriate in the interest of Justice, except those under Regulation 5.1. Regulation 5.3 prohibits forum to entertain a complaint if it pertains to the same subject-matter for which any proceedings before any Court, authority or any other forum is pending, or a decree, award or final order has already been passed by any competent court, authority or forum. Regulation 6 provides for the procedure before the forum with restrictions on interim reliefs under Regulation 6.10. The decision of the forum under Regulation 7.2 are to be in writing supported by reasons and by majority of votes.
19. The Regulations of 2007 provides in Regulation 8.1 (i) a right to any consumer aggrieved by the order made by the forum, or where forum has failed to redress the grievance within the specified period or distribution licensee is aggrieved by the order of the forum, a representation to the 'Electricity Ombudsman'. Clause (it) provides for such representation by consumer or his authorised representative or by distribution licensee within 30 days of the order. Such representation cannot be made under Regulation 8.2, unless the consumer has made a written representation to the forum and the forum has either rejected the representation or has failed to dispose it of within the specified time (Regulation 6.9 provides for expeditious hearing of the complaint by the forum to be decided by speaking order at the earliest preferably within three months from the date of receipt of the complaint and in the event the complaint is not disposed of within the period the forum shall record reasons in writing for the same. It further provides that in such case the complainant may also approach the Ombudsman.
20. Regulation 8.2 further provides in Clause (c) that a representation shall not lie, where the matter is already settled by the Electricity Ombudsman or by any Court. Tribunal or any other competent authority and in Clause (d) the representation, which is pending in any Court, Tribunal, Arbitrator or any other competent authority. The Electricity Ombudsman is authorised to entertain the representation even after the expiry of the specified period, if it is satisfied under Regulation 8.3 that there was sufficient cause for not filing the same within that period. A consumer is required to deposit 33% of the amount, if the complaint relates to dispute with regard to the payment. The powers, duties and the proceedings before the Electricity Ombudsman are given under Regulations 10 to 12 of the Regulations 2007:
10.0. Powers of the Ombudsman:
10.1. (1) The Electricity Ombudsman shall be the Chief Executive of his office.
(ii) The Electricity Ombudsman may issue such directions as may be considered necessary for discharge of functions by the Forum under these Regulations.
10.2. (i) The Electricity Ombudsman shall have the powers to incur expenditure on behalf of the office. In order to exercise such power, the Electricity Ombudsman will draw up an annual budget for his office and shall exercise the powers of expenditure within the budget approved by the Commissioner. The annual accounts of the Office of the Ombudsman shall be maintained in such manner and format as may be specified by the Commission.
(ii) The Accounts of the Ombudsman shall be audited by the Comptroller and Auditor General of India at the time, the Accounts of the Commissioner is audited.
10.3. Subject to the provisions of these Regulations, the Electricity Ombudsman shall specify the procedure to be adopted for issue of notices, calling attendance, examination on oath, receipt of evidence and requisitioning of records and may also specify the form and manner in which a representation is to be submitted before him.
10.4. The Electricity Ombudsman shall maintain confidentiality of any information or document coming into his knowledge or possession in the course of discharging his duties and shall not disclose such information or document to any person except with the consent of the person furnishing such information or document:
Provided that nothing in this Clause shall prevent the Electricity Ombudsman from disclosing information or document furnished by a party in a complaint to other party or parties, to the extent considered by him to be reasonably required to comply with the principles of natural justice and fair play in the proceedings.
11.0. Duties of the Ombudsman:
(i) The Electricity Ombudsman shall:
(a) settle the grievance of the consumer who is aggrieved by non-redressal of his grievances by Consumer Grievance Redressal Forum on a representation made by such consumer within thirty days of the receipt thereof:
Provided that an Electricity Ombudsman shall not hear any matter, which pertains to matters mentioned in Regulation 5.1.
(b) receive representations against the order of the Consumer Grievance Redressal Forum and consider such complaints and facilitate to his satisfaction or settlement by agreement, through conciliation and mediation between a licensee and the aggrieved parties or by passing an award after hearing the parties in accordance with the Electricity Act, 2003, provisions of U.P. Electricity Reforms Act, 1999 not being inconsistent with Electricity Act, 2003, Rules or Regulations made thereunder particularly tariff orders, and Electricity Supply Code.
(c) settle the grievance of the consumer ordinarily within three months.
(d) deal with any other matter referred by the Commission.
(ii) The Electricity Ombudsman may, after hearing the Forum or other interested parties, if any, from time to time, issue such orders, instructions or direction to any forum for the performance of its function under these Regulation as may be deemed fit.
12.0. Proceedings before the Electricity Ombudsman:
12.1. The Electricity Ombudsman:
(i) may call for records relating to the representation from the concerned Forum and the concerned Forum shall send the entire records within 7 days from the date of receipt of such notice to the office of the Electricity Ombudsman;
(ii) may determine the manner, the place, the date and the time of the hearing of the matter, as considered appropriate ;
(iii) shall hear the parties and may direct the parties to submit written submissions in the matter;
(iv) may pass interim order as deemed necessary ;
(v) shall pass a reasoned order for all his findings and award;
(vi) shall pass an award as early as possible, preferably within three months from the date of receipt of the representation and where there is delay in disposal of a representation within the said period of three months, shall record reasons of such delay ;
(vii) shall send a copy of the order to the parties.
12.2. The Electricity Ombudsman may reject the representation at any stage if it appears to him that the representation is:
(i) frivolous, vexatious, mala fide;
(ii) without any sufficient cause ;
(iii) not being pursued by the consumer with reasonable diligence.
12.3. The decision of the Electricity Ombudsman with regard to Regulation 12.2 shall be final and binding on the Consumer and the Distribution Licensee.
12.4. The Electricity Ombudsman may endeavour to promote a settlement of the representation/complaint received through conciliation or mediation. To promote such a settlement, the Electricity Ombudsman may follow such procedures as he may consider appropriate in the interest of Justice and he shall not be bound by any rule of evidence or procedure.
12.5. If a representation is not settled by agreement within a period of one month from the date of its receipt or such further period as the Electricity Ombudsman may consider necessary, he may dispose of representation after affording the parties reasonable opportunity to present their case.
12.6. The order passed by the Electricity Ombudsman shall set out:
(i) issue-wise decision ;
(ii) reasons for passing the order ; and
(iii) directions, if any, to the Distribution Licensee/consumer.
12.7. A copy of the order shall be sent to the Consumer and the Distribution Licensee named in the representation.
12.8. The consumer or the Distribution Licensee, aggrieved of the decision of the Ombudsman, may approach any Court or Tribunal having jurisdiction to decide such grievance.
21. The Regulation, 2007 have only repealed the Regulation, 2003. It has not repealed the Regulation of 2004 but there does not appear to be any conflict or inconsistency between powers and duties of the Electricity Ombudsman provided in Regulation of 2004 and the Regulation of 2007. In order to clarify Regulation 20 of the Regulations of 2007 provides that subject to provisions of these regulations the forum and the Electricity Ombudsman shall be guided by the principles of natural justice and shall have powers to regulate their own procedure not inconsistent with these rules.
22. Clause 14 provides for compliance with the order of the 'Electricity Ombudsman' where Distribution Licensee fails to comply with the orders of the Forum or, as the case may be, of the 'Electricity Ombudsman', within 30 days of the order or within such time as may be granted, the Electricity Ombudsman may within thirty days of the date of the application of the consumer and, after giving opportunity to the Distribution Licensee issue necessary direction to ensure compliance of the order or refer the matter to the Commission for appropriate order under Section 142 of the Act and after hearing the parties or after obtaining the report from the Ombudsman.
23. The purpose of appointment of the Ombudsman is to settle those disputes and to consider the grievances, which could not be settled or decided by the Consumer Grievance Redressal Forum, or with which the consumer is not satisfied. He has powers to settle by process of mediation, conciliation or to make an award. The qualifications of the 'Electricity Ombudsman' gives him sufficient knowledge and authority to settle, mediate, conciliate the matter and in the absence of any settlement to make a reasoned award.
24. In this case the 'Electricity Ombudsman' has not given any direction contrary to Clause 3.4 (a), as an exception is provided in Clause 3.4 (d). The petitioner did not place any technical problem in sanctioning the connection by tapping to the respondent-consumer. Their objection was confined only to the regulation Clause 3.4 (a) without looking into the exceptions and the analogy of providing other connection through the same feeder. The award has directed the sanction of connection and tapping only temporarily, till no objection certificate is given by the railways and the farmers over whose lands the electricity lines have to be drawn. The object of the temporary arrangement was to adjust equities between the petitioner and the consumer, who was a model consumer in the past was suffering a loss of Rs. 50 lacs per month.
25. There is substance in the contention of counsel for the respondent-consumer that where the 'Electricity Ombudsman' has succeeded in mediation and conciliation in persuading the parties to reach to a settlement, the proceedings would not be subject to challenge except on the ground of jurisdictional error committed by the Electricity Ombudsman or any fraud pleaded and proved on record. In an other case the award may be challenged as an arbitral award on the grounds available under Section 34 of the Arbitration and Conciliation Act, 1996. The scope of interference with award is limited to the grounds, which may be taken under Section 34 of the Arbitration and Conciliation Act, 1996. In making these observations I have not considered the submissions, as it was not argued before me, whether the award of the Electricity Ombudsman may be challenged only under Section 34 of the Arbitration and Conciliation Act, 1996 as statutory arbitration. The Court has only drawn the analogy from Section 34 of the Arbitration and Conciliation Act, 1996 as the principles to challenge to arbitral award should be limited to only such grounds as are available under Section 34 of the Arbitration and Conciliation Act, 1996.
26. An Maharashtra State Electricity Regulatory Commission v. Reliance Energy Ltd. and Ors. : AIR2008SC976 , the Supreme Court has considered the similar scheme and has given directions to give wide advertisement to the provisions of redressal through forum and the Electricity Ombudsman. There is no reason as to why similar directions may not be issued to the U.P. Electricity Regulatory Commission. The writ petition is dismissed.